1 2025:CGHC:18042 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2643 of 2025 1 - Navratan Jaiswal S/o Shri Sukhdev Jaiswal Aged About 55 Years Terminated Lecturer (L.B.) And Posted At Govt. High School Son, Block Masturi, District Bilaspur, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, School Education Department, Mahanadi Bhawan, Atal Nagar, Mantralaya, New Raipur, District Raipur, Chhattisgarh. 2 - The Director, Public Education Indrawati Bhawan, Atal Nagar, Mantralaya, New Raipur, District Raipur, Chhattisgarh. 3 - Joint Director Education Division Bilaspur (C.G.) 4 - The Collector Bilaspur (C.G.) SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.04.23 16:12:24 +0530 2 5 - The District Education OfÏcer Bilaspur (C.G.) 6 - The Block Education OfÏcer Block - Masturi Bilaspur (C.G.) 7 - Principal, Govt. High School Son, Block Masturi, Bilaspur (C.G.) ... Respondent(s) (Cause title taken from CIS) For Petitioner(s) : Shri Anurag Verma, Advocate. For Respondent(s) : Shri Ajit Singh, Govt. Advocate. Hon'ble Shri Bibhu Datta Guru , Judge Order on Board 22.04.2025 1. Challenge in this petition is to the order dated 03.04.2025 (Annexure P/1), by which the petitioner has been dismissed from the service. The petitioner is also seeking a direction towards the respondent authorities to reinstate the petitioner in service with back wages. 2. Learned counsel for the petitioner would submit that pursuant to the selection process initiated by the respondent authorities, the petitioner participated and appointed for the post of Shiksha Karmi Grade-I on 27.06.2011. On completion of the probation period his services were regularized, subsequently his services were absorbed in the department of School Education. According to the petitioner, in the meanwhile a complaint has been made alleging 3 inter alia that the petitioner is having more than two living children and action may be taken against the petitioner. Thereafter a show cause notice was issued to the petitioner, wherein the petitioner submitted his reply and stated that since the said Rule 6 (6) of the CG Civil Services (General Conditions of Service) Rules 1961 has been omitted and hence no adverse action can be taken against the petitioner. 3. Despite the aforesaid fact, the respondent authorities passed the impugned order and dismissed the petitioner from the service. 4. Learned counsel appearing for the State would support the impugned order and would submit that the same has been passed after appreciating the entire facts and circumstances of the case. 5. I have heard learned counsel for both the parties and perused the documents. 6. From the above stated submission the point to be determined by this Court is what should be the effect of omission of the Rule which has been omitted by the State Government on 13.07.2017? 7. To appreciate this point it is expedient for this Court to extract the Rule 6(6) of the Rules, 1961 which provides disqualification for appointment to any service or post :- “Rule 6(6) as stood prior to omission “No candidate shall be eligible for appointment to a service or post who has more than two living children one of them is born on or after 26.01.2001 [provided that no candidate shall be disqualified for appointment to a service or post who has already one living child and next delivery takes place on or after the 26th day January, 2001 in which two or more than two children are born]” 4 8. The history of this provision would demonstrate that these provisions have been initially made applicable in Panchayat Raj Adhinium 1993 with regard to appointment of Panch, Sarpanch of Panchayat. The virus of the said provisions have come up for consideration before the Hon’ble Supreme Court in case of Javed and Others vs. State of Haryana and Others {(2003) 8 SCC 369} wherein Hon’ble Supreme Court has held in paragraph 61 and 62 as under:- “61. If anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an ofÏce in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it. 62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out.” 9. This judgment has been recently followed in Civil Appeal No. 2744/2024 in case of Ramji Lal Jat vs State of Rajasthan decided on 20.02.2024. 10. The similar provisions have also been inserted in the Rules of 1961 in the year 2001. The Rules 6(6) disqualified any person to be 5 appointed having more than two children. As such, the orders passed by the authority treating the petitioner as disqualified for appointment cannot be said to be unjustifiable till the Rules were in existence. But, this Court cannot lose sight of the fact that the said Rules have been omitted on 13.07.2017, as such, disqualification clause is not in existence now. The effect of omission of any clause has come up for consideration before the Hon’ble Supreme Court in case of Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise {(2016) 3 SCC 643} wherein in paragraph 12 and 13 Hon’ble Supreme Court has held as under:- “12. From this it is clear that when Section 6 speaks of the repeal of any enactment, it refers not merely to the enactment as a whole but also to any provision contained in any Act. Thus, it is clear that if a part of a statute is deleted, Section 6 would nonetheless apply. Secondly, it is clear, as has been stated by referring to a passage in Halsbury’s Laws of England in the Fibre Board’s judgment, that the expression “omission” is nothing but a particular form of words evincing an intention to abrogate an enactment or portion thereof. This is made further clear by the Legal Thesaurus (Deluxe Edition) by William C Burton, 1979 Edition. The expression “delete” is defined by the Thesaurus as follows: “Delete: - Blot out, cancel, censor, cross off, cross out, cut, cut out, dele, discard, do away with, drop, edit out, efface, elide, eliminate, eradicate, erase, excise, expel, expunge, extirpate, get rid of, leave out, modify by excisions, obliterate, omit, remove, rub out, rule out, scratch out, strike off, take out, weed wipe out.” Likewise the expression “omit” is also defined by this Thesaurus as follows:- “Omit:- Abstain from inserting, bypass, cast aside, count out, cut out, delete, discard, dodge, drop exclude, exclude, fail to do, fail to include, fail to insert, fail to mention, leave out, leave undone, let go, let pass, let slip, miss, neglect, omittere, pass over, praetermittere, skip, slight, 6 transire.” And the expression “repeal” is defined as follows:- “Repeal:- Abolish, abrogare, abrogate, annul, avoid, cancel, countermand, declare null and void, delete, eliminate, formally withdraw, invalidate, make void, negate, nullify, obliterate, ofÏcially withdraw, override, overrule, quash, recall, render invalid, rescind, rescindere, retract, reverse, revoke, set aside, vacate, void, withdraw.” 13. On a conjoint reading of the three expressions “delete”, “omit”, and “repeal”, it becomes clear that “delete” and “omit” are used interchangeably, so that when the expression “repeal” refers to “delete” it would necessarily take within its ken an omission as well. This being the case, we do not find any substance in the argument that a “repeal” amounts to an obliteration from the very beginning, whereas an “omission” is only in futuro. If the expression “delete” would amount to a “repeal”, which the appellant’s counsel does not deny, it is clear that a conjoint reading of Halsbury’s Laws of England and the Legal Thesaurus cited hereinabove both lead to the same result, namely that an “omission” being tantamount to a “deletion” is a form of repeal.” 11. Even in the omission clause, there is no such provision for saving the action taken in pursuance of the pre-existing Rules. It is apparent from record that State Government itself omitted the said Rule, therefore, entire action of the respondent in dismissing the service of the petitioner has lost its significance and it cannot be said that omission of a rule will have prospective effect, it has same effect of repeal as held by the Hon’ble Supreme Court in case of Shri Bhagwati (Supra). Consequently, he is entitled to be reinstated in the service with continuity of service but without backwages as the petitioner has nowhere pleaded that during dismissal period he remained unemployed. 7 12. Accordingly, the writ petition is allowed in part directing respondent authorities to reinstate the petitioner with continuity of service without back wages. Sd/- (Bibhu Datta Guru) Judge Shoaib